Lackston Robinson is back at the AG's Chambers

The Gleaner of August 07, 2008, reports that Lackston Robinson is back at work at the Attorney General's Chambers. Not surprisingly, the SG has expressed great joy at his return. I understand that Mr. Robinson is now the Director of Litigation in place of Nicole Foster-Pusey, who is now on pre-resignation leave.

The Gleaner's report had a couple of errors which I pointed out in a note to Associate Editor Colin Steer in an email today (August 09, 2008)







Colin,

While it is true that Justice Jones quashed the PSC's decision to retire Lackston Robinson in the public interest, it is not true that

a) Justice Jones ordered Lackston Robinson to be reinstated, or

b) that Justice Jones criticized the PSC for sending Mr. Robinson on leave.

If you read Justice Jones' judgment, you will see that it was the Permanent Secretary in the Ministry of Justice who sent Mr. Robinson on leave. Indeed the litigation was not only against the PSC but also against the PS. The judge found that the PS' decision was ultra vires, and accordingly, it was quashed by an order of certiorari. Any judicial criticism of the decision to send Mr. Robinson on leave would accordingly been directed only at the PS, and not at the PSC.

There is really no legal basis for assuming that Mr. Robinson has been 'returned', when indeed, the effect of the judgment is that he never left.

If you have not seen the judgment, I would be happy to send it to you.

Hilaire

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The other Jamaican newspapers follow suit

I gather that the Daily Gleaner and the Sunday Herald have followed the Jamaica Observer in distancing itself from James W. Smith's letter regarding the cancellation of the acting appointments of Nicole Pusey-Foster and Lackston Robinson. I cannot believe that every major paper in Jamaica opted to accept the word of Amb. Donald Rainford without question or investigation. The abject cowardice of the media apparently knows no bounds.

In fairness to the Observer, I have heard from one of the editors who has taken the point that the Observer should not have issued a disclaimer in light of the clear evidence available that demonstrates approval for the acting appointments was given and then withdrawn.

Some have suggested that the Amb. Rainford should be taken as saying that the acting appointments were made by the Chief Personnel Officer without the express authorization of the new PSC. However, in the disclaimer by the Observer (which I assume was replicated by the other newspapers), it is clear that Amb. Rainford's position is that no recommendations for the acting appointments were ever made, much less approved or disapproved. This simply does not square with the evidence. When I appeared on Nationwide News Network last week, Emily and Naomi were trying to push the idea of the CPO going on a frolic of her own, as if to imply that she requires express authorization for every personnel decision she makes in the name of the PSC.

Given the posturing of the Attorney General, and her clear intent to micro-manage personnel decisions in the AG's Chambers, I am all the more astonished by the media's handling of this issue. It's a damn disgrace.

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The Observer drops the ball on the Foster-Pusey/Robinson acting appointments

In today's Observer, March 29, 2008, there is a disclaimer that reads as follows:

THE Observer wishes to advise our readers that in a letter to the editor published in our March 26, 2008 edition the author, James W Smith, stated that:

“The most recent of these developments has been the rescinding of the promotion of a senior staff member by the Public Service Commission only days after the same PSC had approved the recommendation. The public has also learnt of the resignation of the acting solicitor general with over a year on his contract, and the non-renewal of the contract of the deputy solicitor-general, Professor Stephen Vasciannie.

It is of grave concern that the newly appointed PSC could approve a recommendation from the acting solicitor-general for the promotion of a senior staff member and then days later rescind the same appointment.

The PSC owes an explanation as to the “extenuating” circumstances that arose in those days that caused such a reversal. I hope that the new PSC, comprising individuals with the highest levels of integrity, did not bow to political pressure on this issue. Could this be the reason for the acting solicitor-general’s resignation? And what of the future of that staff member who must be highly embarrassed by the course of these events?”

The chairman of the PSC, Donald Rainford, categorically denies this accusation and accordingly advises that no such recommendation was sent to the PSC, no such appointment was made by the PSC and consequently no such appointment was rescinded by the PSC.

Except for the views expressed in the Editorial column, the articles published in our editorial section do not necessarily represent the views of the Jamaica Observer.


The disclaimer can be found at: http://activepaper.olivesoftware.com/Repository/ml.asp?Ref=Sk1PLzIwMDgvMDMvMjkjQXIwMDQwMw==&Mode=HTML&Locale=english-skin-custom




In issuing this disclaimer, the Observer appears to have simply took the PSC Chairman at his word, without any journalistic inquiry of the relevant players, namely, the acting Solicitor General and the Chief Personnel Officer. Had the Observer probed more deeply, or at all, it would have discovered two letters written by the CPO. I have posted these letters under the heading "Useful links". You can otherwise access them at:

http://www.scribd.com/doc/2402712/-letter-of-Chief-Personnel-Officer-approving-acting-appointments-270208

http://www.scribd.com/doc/2402711/-letter-of-Chief-Personnel-Officer-cancelling-appointments-030308


These letters plainly evidence the approval of the acting appointments of Nicole Foster-Pusey and Lackston Robinson (on February 27) and the later cancellation of the appointments less than a week later on March 3, 2008.

I am quite ashamed of the Observer for so abjectly accepting the PSC Chairman's denial without any further inquiry. It is all the more egregious, given that the correspondence between the acting Solicitor General and the CPO was openly discussed by Emily Crooks and Naomi Francis on their programme on NNN earlier this week. There really is no excuse for this shoddy and quite spineless journalism.

James W. Smith, the letter writer, has protested to the Observer, and I have supported him in this regard. I reproduce the relevant emails for your information:


James Smith's email of March 29, 2008

----- Original Message ----
From: James W. Smith
To: Vernon Davidson ; Desmond Allen ; Editorial Observer
Sent: Saturday, March 29, 2008 2:01:16 PM
Subject: Ja Observer: Correction & Disclaimer - PSC & Atty General's Dept


Dear Editor
I note with interest on Page 4 of the Daily Observer of Saturday, March 29, 2008 that you issued a disclaimer and apology with respect to a letter I sent you on issues at the Attorney General's Dept.
The disclaimer raises more questions than answers and I urge you to continue to pursue the matter.
Facts
1) The Chief Personnel Officer or Scty to the Public Services Commission (someone who has acted in this position for many years) wrote a letter under her signature to the acting Solicitor General Patrick Foster approving the recommendation for the appointment of Nicole Foster-Pusey.
Subsequent, the same person wrote another letter in which she stated that "she was directed" to inform that the recommendation was rescinded.

This letters can be obtained under the Access to Information Act.

Questions
1) On whose authority/instructions would the Scty to the PSC approve such a recommendation? Are we to understand that she acted on her own, without consultation with the chairman or any of the members of the PSC?
Is it standard procedure for the Scty to the PSC to do this without consultation as the chairman of the PSC is suggesting?
2) Is it merely coincidental that the same day the initial letter approving the recommendation of Mrs. Foster-Pusey was sent to the acting SG, that the Attorney General, Dorothy Lightbourne would call Patrick Foster - the acting SG and "cuss" him off for making that recommendation without her consultation or input?
Did the chairman of the PSC not know of this?
3) If as we are being made to believe, that the Scty to the PSC acted on her own, why then would she issue a letter of revocation of an appointment indicating that she was "directed to". Directed to by whom? Since the AG can't or better still shouldn't direct the Scty of the PSC, then who did.
4) Is it of any interest to the public that the acting SG Patrick Foster has resigned? Does anyone care why he has resigned?

I am afraid that a game is being played out here, where the Scty of the PSC is being made out to have acted on her own on this issue and will be used as a scapegoat to cover up the most blatant political interference that this country has ever seen by an Attorney General.
If anybody listened to Nationwide Radio over the last week on this issue, the "wicket is being prepared and rolled" for such an outcome.

These matters are of public interest and must be pursued.
I don't expect this letter to be published but I expect the Observer as an independent newspaper to pursue the truth on this issue.
Of note and interest, my letter was sent to all three newspapers (Gleaner, Observer and Herald) published by all three and the Observer is the only one that has issued a retraction and disclaimer.



Regards,
James


My email of support of March 29, 2008 (addressed to Vernon Davidson and Desmond Allen of the Observer)
Desmond & Vernon,

I must support James Smith on this issue. I take strong exception to your correction/disclaimer. Undoubtedly, there are serious questions to be asked about this issue. Given this, I am astonished that the Observer chose instead to issue a disclaimer, based solely on a denial by Amb. Rainford. Perhaps you are not aware of this, but Nationwide News Network 'published' the correspondence between the Chief Personnel Officer and the acting Solicitor General on this issue. For reference, here's my blog commentary on the issue: http://vasciannie-psc.blogspot.com/2008/03/nnn-this-morning-programme-and-ags.html. Essentially, if one is to follow your disclaimer, there was never any recommendation by the acting SG, and therefore nothing to be approved or rescinded. This cannot fly based on the facts that are already known and in the public. Any responsible newspaper has an obligation to do more than simply accept uncritically the assertions of the PSC chair.

If we cannot rely on the media to probe the questions raised by James Smith, we are in more serious trouble as a nation than I thought.

Best,

Hilaire

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NNN "This Morning" Programme and the AG's Chambers

Earlier this month, it was reported that the PSC cancelled the appointment of Nicole Foster-Pusey as acting Solicitor General, after the PSC's Chief Personnel Officer (CPO) had approved it at the request of the acting Solicitor General, Patrick Foster.

Emily Crooks and Naomi Francis, hosts of NNN's "This Morning" programme obtained copies of correspondence between Patrick Foster, Acting Solicitor General and the CPO, and discussed the issue at some length on Wednesday, March 26, 2008, and again on March 27, 2008. I appeared on the programme on March 27 in an attempt to clarify some of the misconceptions of the hosts, and indeed confusion on their part. It turns out that Patrick Foster had made two recomemndations: appoint Nicole Foster-Pusey as acting Solicitor General and Lackston Robinson as acting Director of Litigation in her stead. The hosts appeared to have little appreciation of the roles of the acting Solicitor General and the CPO. At one point they suggested that Patrick's recommendations were perhaps motivated by mischief, and that it might have been better for him to wait for the new SG to be installed. Both sought to read something possibly untoward in the CPO approving the recommendations, given the previous turbulence in the AG's Chambers. Incredibly, the hosts did not ask the most fundamental question: why did the PSC withdraw approval of the acting Solicitor General's recommendation? This deficiency, among others, prompted me to send the hosts a couple of emails, edited versions of are reproduced below.





My email of March 26, 2008
Subject: this morning's segment on the AG's Chambers (March 26, 2008)


Ladies,

Kudos for publicizing the correspondence between the acting Solicitor General and the Chief Personnel Officer of the PSC regarding the aborted acting appointments of Nicole Foster-Pusey and Lackston Robinson.

However, I must tell you that had I not known a thing or two about the civil service and the AG's Chambers, I would've been completely lost by your discussion this morning. To some extent I don't think either of you were clear on a few fundamentals of the civil service. For example:

1. Like all public authorities, the PSC has the power to delegate certain of its functions. In a bureaucracy of the size of Jamaica's, you really wouldn't expect the PSC to personally attend to every personnel decision, particularly acting appointments. The bureacracy would come to a grinding halt if every single personnel decision had to be made directly by the PSC. In this context, the Chief Personnel Officer (CPO) would presumably be authorized to take decisions on the PSC's behalf relating to the recommendations of acting appointments of the sort made by Patrick Foster, QC, acting Solicitor General. Invariably, bureacrats like the CPO preface their letter with "I am directed to.." That sentence is there for a good reason, to emphasize that the official in question is not acting on their own initiative, but at the behest of the relevant authority (in the case the PSC). You both seemed to think there was something mysterious or questionable about the CPO's letter approving the recommendations, when there really isn't. Obviously, the PSC has the power to override the CPO, which apparently occurred in this case, when the approval was withdrawn. The other thing to bear in mind, is that the PSC/CPO is almost invariably likely to act on the recommendations of permanent heads of government departments (acting or substantive), since those senior officials will be most familiar with the needs of their departments and with the capacity of the personnel that they manage on a daily basis.

2. There is no rational basis for arguing that Patrick Foster should've refrained from making recommendations pending the installation of the SG, or that he was somehow being mischievous in making those recommendations. Again, this betrays an ignorance of the way the civil service works. Patrick, as acting SG, exercises the same powers as if he were the substantive holder of the position. He is not merely a caretaker. As a responsible chief operating officer of the Chambers, he is obliged to promote the efficiency of the Chambers, which includes making recommendations for acting positions where, in his judgment, the need arises. Further, you will note that his recommendation was that the acting posts be approved 'pending further orders'. Clearly, this implies that the tenure of the acting positions could later be terminated or modified on the recommendation of the substantive SG, or anybody else who is appointed to act in his/her stead.

I really think that you should both consult with an expert on civil service practice, someone perhaps like retired Cabinet Secretary Carlton Davies. This, I believe, would enhance your presentation of this issue immensely.

Finally, I think that in all of the discussion this morning, the most critical issue was missed: why did the PSC withdraw its approval of Patrick's recommendations? I know the answer. I hope you do do.


Hilaire



My email of March 27, 2008

Dear Emily & Naomi,

Thanks for having me on this morning.

Patrick Foster's resignation occurred around the same time that his recommendations were ultimately rejected by the new PSC. There is little doubt in my mind that the PSC was politically strong-armed into cancelling the acting appointments.

The Attorney General has personal animosity towards Nicole Foster-Pusey, hence the objection to Patrick's recommendation. The AG has personally taken up Lackston Robinson's cause. This is evidenced by a number of things, including her personal intervention with the Ministry of the Public Service to have Lackston reinstated despite the fact that there was still litigation pending in the matter. She also instructed the AG's Chambers to withdraw from this litigation. As you know, the parties had agreed on asking Justice Jones to clarify his judgment as to whether it included an order of reinstatement or not. While this process was ongoing, the AG ordered her staff to withdraw from the litigation.

As you may know, the case of Lackston Robinson is front and centre of the PM's justification for firing the PSC. Nobody in the media has really explored why. Nobody has asked why the AG has taken such an active interest in Lackston Robinson and his treatment by the PSC. By contrast, the Police Service Commission was similarly hauled over the judicial coals for retiring Det. Insp. Donovan O'Connor in the public interest. The government has not sought to equate an averse judicial review of this Police Service Commission decision with "misbehaviour". Why not?

Further, what seems to have eluded the media is that Justice Jones had harsher words for the Permanent Secretary Carol Palmer that for the PSC. Mrs. Palmer was responsible for sending Lackston Robinson on leave pending his litigation challenging his retirement in the public interest. Mrs. Palmer remains the Permanent Secretary, to the best of my knowledge. If the PSC deserved to be fired, in the eyes of the government, why not the Permanent Secretary? I don't know if you have read Justice Jones judgment. If you haven't, I would suggest that you do.

Despite all the hoopla by the AG and her PM, Justice Jones never ordered Lackston's reinstatement, as I have explained to you before. This is clear from the judgment itself. In any event, the judge would've lacked the jurisdiction to do so, for reasons that I have previously explained.

Btw, Naomi, I heard you apply a corporate analogy to the relationship between the Ministry of Justice and the Attorney General's Chambers that is incorrect. You suggested that the Ministry of Justice is some sort of parent company for the AG's Chambers. This is not so. There is no such 'corporate relationship'. Under the constitution of Jamaica, the AG is a separate and independent functionary. In fact there is no mention of a Minister/Ministry of Justice in the Constitution While the roles of AG and Minister of Justice are frequently combined, they are legally quite disparate. Accordingly, as I have said to you before, the AG's Chambers is not subordinate to the Ministry of Justice. For certain adminstrative purposes only, the PS of the Ministry of Justice does handle certain matters pertaining to the AG's Department. However, this does not make the AG's Chambers legally subordinate to the Ministry. It perhaps would be easier to understand were the posts of AG and Minister of Justice held by separate individuals. You may or may not know that there is no legal requirement for the AG to be a cabinet minister or indeed a parliamentarian.

I honestly think that your attention with respect to this issue should be far more sharply focused on the issue of political interference, particularly by the AG. The pattern has clearly been demonstrated with the derailment of Stephen Vasciannie's selection as SG, and the subsequent firing of the PSC. Do you honestly believe that the new PSC can do anything other than toe the JLP line? That is why it acted with dispatch to reverse the CPO, once it realized that the AG objected to Nicole Foster-Pusey's acting appointment.

There is hardly a doubt about AG's agenda to eliminate so-called PNP lawyers and replace them with loyalist-lawyers. You mark my words. I am prepared to bet that Lackston Robinson will be installed as a Deputy Solicitor General before mid-year. Further, I prepared to bet that within two years or less, the entire civil service will be dominated by JLP loyalists. Check out what's been going on in the Ministry of National Security. Check out which Minister's daughter has recently gotten a plum job despite her complete lack of qualifications for it. I say no more.

Best regards,

Hilaire

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Commentary on Justice Jones' judgment

The judgment of Mr. Justice Jones has been the subject of much discussion in the wake of the firing of the Public Service Commission. Unfortunately, much of the discourse has not been grounded in a clear understanding of what the judgment was about. Some, including the Attorney General, have declared that the judgment had the effect of reinstating Lackston Robinson. This is not so. It has also been asserted by others (including the Prime Minister and the Attorney General) that the Public Service Commission acted in contempt of the judgment in failing to reinstate Mr. Robinson in the Attorney General's Chambers. Again, this is not so.

What really was the judgment about?






First of all, the nature of the proceedings before Justice Jones was judicial review. For laypersons, judicial review is a means by which the Supreme Court considers decisions made by public authorities or functionaries like the Public Service Commission to determine whether such decisions were made in conformity with the law. Judicial review is not the same thing as an appeal,where the appellate tribunal has the power to substitute its decision for the decision that it is considering. In judicial review proceedings, the court cannot substitute its own judgment for that of that tribunal it is reviewing. This may seem a bit confusing to the layperson, but read on, and hopefully it will become clearer. In this particular case, the court could not decide that Mr. Robinson should or should not be retired in the public interest. It could only decide on whether the decision taken by the Public Service Commission took all the correct legal steps in taking the decision it made.

If the court finds that the decision taken was wrong in law, the court can quash the decision. This is essentially a finding that the decision is unlawful and of no effect.


Background

The background to the judicial proceedings before Justice Jones is this:

1. Lackston Robinson, a member of the Attorney General's Chambers had acted as Deputy Solicitor General for a year, when he was reverted to his substantive position of Divisional Director. He was reverted to his substantive position in late 2001.

2. In April 2002, Mr. Robinson initiated judicial review proceedings to challenge this decision to revert him to his substantive position.

3. In the same month/year, the Permanent Secretary in the Ministry of Justice directed Mr. Robinson to go on vacation leave. The PS gave no reasons for sending Mr. Robinson to go on leave, but it later emerged that she had done so because of the tension and discomfort generated in the AG's Chambers because of the pending litigation.

4. Mr. Robinson promptly initiated judicial review proceedings against the Permanent Secretary to challenge her decision to send him on leave.

5. In March 2003, the Public Service Commission took the decision to retire Mr. Robinson in the "public interest", as provided for under the Public Service Regulations. Mr. Robinson again initiated judicial review proceedings to challenge the decision of the Public Service Commission to retire him in the public interest.


The judicial review proceedings with respect to the Permanent Secretary's decision and the PSC's decision were consolidated and heard at the same time before Justice Jones.

Issues

According to Justice Jones, the issues for considerations were:

i) whether the Permanent Secretary improperly exercised her power (under relevant Staff Orders/Rules) to direct that Mr. Robinson proceed on vacation leave, and whether such a decision was ultra vires, and a nullity;

ii) whether the Public Service Commission acted unlawfully in breach of the Public Service Regulations and of natural justice in recommending to the Governor General that Mr. Robinson should be prematurely retired from the Public Service and,if so, whether the decision of the Public Service Commission is ultra vires and a nullity.

Ruling

The judge ultimately ruled that both decisions were unlawful (ultra vires). By extension, the court also held that the Governor General's decision to retire Mr. Robinson in the public interest was also unlawful. Both decisions were quashed by the court (the technical legal term for this is certiorari).

The court also granted Mr. Robinson and order that "damages for loss of salary and allowances be assessed on a date to be fixed by the Registrar of the Supreme Court."

It should be carefully noted that the court did not order the reinstatement of Lackston Robinson either to the public service in general, or to the Attorney General's Chambers in particular.


Commentary

1. This judgment was used by the Prime Minister as one of the grounds for dismissing the PSC for "misbehaviour". According to the Prime Minister's press release (appearing on the JIS website on December 14, 2007):


Mr. Golding said the blatant disregard for procedural fairness and natural justice, demonstrated by the Commission, was the subject of scathing comments by the Supreme Court earlier this year. Mr. Golding said that based on this, it would have been the honourable thing for members of the Commission to have tendered their resignations en bloc. Instead, Mr. Golding noted that the Commission had persisted in its vindictiveness by contriving to circumvent and frustrate the decision of the Court. This has again landed the Commission before the Court for failure to abide by the decision of the Court...


In his review of the PSC's conduct, Justice Jones said:


"...the decision of the Public Service Commission to retire [Mr. Robinson] is in excess of jurisdiction and illegal";[page 35].


This is the customary language of the courts when quashing decisions of public authorities of functionaries. Public authorities and functionaries are regularly the subject of adverse judicial reviews without any concomitant implication that they have been guilty of "misbehaviour". Judges, for example, are frequently reversed on appeal. Sometimes the comments of the appellate courts are quite scathing; however, this has never been taken as indicative of 'misbehaviour' warranting the dismissal of the judges who have been reversed.


In my view, the judge was far more scathing in his review of the Permanent Secretary's decision, when he remarked that her decision was "a striking example of an abuse of power." [page 22] It seems to me that if there is ground for dismissing the PSC, there is even stronger ground for dismissing the Permanent Secretary.


The PM's indictment of the PSC for "contriving to circumvent and frustrate the decision of the Court", is entirely without legal foundation. Firstly, there was no obligation on the PSC to reinstate Mr. Robinson. The only tangible relief ordered by the court was damages for loss of salary. Secondly, it was open to the PSC to exercise its constitutional power to still retire Mr. Robinson in the public interest, provided that it acted in accordance with the law (in this case, the PSC only has power to retire a public officer in the public interest if so recommended by the head of department of the public officer in question; in Lackston Robinson's case, the PSC had omitted to get the recommendation of the Solicitor General before retiring Mr. Robinson). In other words, the PSC could have simply repeated the process, but ensured that it followed all of the legal steps required.

Rather than flout the judgment of Justice Jones, the PSC took steps to reinstate Lackston Robinson in the public service, something that the PSC was not constitutionally or legally obliged to do. The PSC attempted to transfer him to another position in the public service (Tax Dept), which has now provoked another round of litigation by Lackston Robinson. It is important to note that the PSC does have the constitutional authority to transfer public service officers.


2. The PSC members sued by Lackston Robinson were Daisy Coke, Michael Fennel, Edwin Jones, Pauline Findlay, and the late George Phillip. I understand that Alfred Sangster replaced George Phillip, when the latter died in April 2007. Notwithstanding that Alfred Sangster was not a member of the PSC, nor a party to the decision that was quashed by Mr. Justice Jones, he was still fired by the PM for misbehaviour. Given the foregoing, on what legal or rational basis could the PM assert that the judgment should have precipitated the en bloc resignations of all of the PSC members, including Dr. Sangster??


In conclusion, I reaffirm that:

a) the judgment of Mr. Justice Jones is nothing out of the ordinary; it represents a routine quashing of a decision that a public authority took that was ultra vires or in breach of the law;

b) nothing from the judgment can reasonably be interpreted as ordering the reinstatement of Lackston Robinson in the public service generally or the AG's Chambers in particular;

c) the PSC has not acted in contempt of the judgment, and there is nothing in the judgment itself that can reasonably ground a charge of constitutional misbehaviour.

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Judgment of Mr. Justice Jones quashing decision of the PSC to retire Lackston Robinson in the public interest

The judgment of Mr. Justice Jones quashing the decision Public Service Commission to retire Lackston Robinson in the public interest was one of the grounds relied on by the Prime Minister to fire the PSC. Many have not had access to the judgment, so I reproduce it in full here. It is also available at: http://www.scribd.com/doc/1018302/Judgment-of-Mr-Justice-JonesDocument.

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Judgment of Mr. Justice Jones in matter of R v Permanent Secretary exparte Lackston Robinson and Members of the Public Service Commission

The judgment of Mr. Justice Jones quashing the decision of the Permanent Secretary of the Ministry of Justice/Public Service Commission to retire Lackston Robinson in the public interest was one of the grounds relied on by the Prime Minister to fire the PSC. Many have not had access to the judgment, so I reproduce it in full here.

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Privy Council decision touching on the issue of reinstatement of unlawfully dismissed public service officer

I am grateful to a colleague for bringing to my attention the Privy Council decision of Astley McLaughlin v Governor of Cayman Islands. This decision was delivered in July 2007. I have added to the link to this decision under Useful links. In summary, the Privy Council held that it was reasonable for the Court of Appeal of the Cayman Islands to decline to order reinstatement of Dr. Astley McLaughlin, a government employee who had been wrongly dismissed. This case is relevant to the litigation now being pursued by Lackston Robinson to be reinstated in the Attorney General's Department of Jamaica. Among the reasons cited by the Prime Minister for firing the Public Service Commission was it's alleged failure to reinstate Lackston Robinson following the Supreme Court's quashing of the PSC's decision to retire Lackston in the public interest. I set out some relevant extracts from the McLaughlin case below.




In 1998, Dr. McLaughlin was terminated from his position in the government service of the Cayman Islands. The Courts ultimately held that his dismissal was unlawful, because of a failure on the part of the Governor to observe certain legal procedures, including natural justice. Dr. McLaughlin also petitioned the courts to be reinstated to the office which he held prior to the dismissal, or to "an alternative suitable office, with full back pay and benefits, including seniority for pension and other purposes>"

The Court of Appeal of the Cayman Islands in addressing the issue of reinstatement, held as follows:

The appellant has sought relief that he be reinstated in the office which he held at the time of his retirement. Mr Hall-Jones submitted that courts in judicial review proceedings are loath to order the reinstatement of employees, as such an order borders on the usurpation of the powers of the decision maker, and because of the practical problems which such an order would present. For this proposition he relied on Lewis, Judicial Remedies in Public Law, 2nd ed., para 11-021, (2000). The appellant has not been in the public service for approximately four years. We have no knowledge of the state of the requirements of the public service for personnel and in what capacities, and, for no other reason, we do not consider reinstatement as an appropriate remedy.


At paragraph 18 of its judgment, the Privy Council endorsed the Court of Appeal's approach, holding that:


It was reasonable for the first Court of Appeal to decline to order that Dr McLaughlin be restored, after a delay of nearly four years, to the specific office he had held in December 1998.


Ultimately, the Privy Council held that Dr. McLaughlin was entitled to a proper assessment of damages from the date of the unlawful termination. [The Privy Council otherwise overturned the decision of the Court of Appeal, because of an error of law which is not germane to the question of reinstatement].

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